Judicial Credibility: Caperton v. Massey and Constitutional Recusal Requirements

Earlier this summer, the U.S. Supreme Court issued a modestly groundbreaking ruling on constitutionally required judicial recusal.[1] The case, Caperton v. A.T. Massey Coal Co.,[2]> garnered significant public attention before it ever reached SCOTUS.  In fact, the underlying story proved so dramatic that John Grisham used it for the basis of his most recent novel, The Appeal.[3]  Caperton represents the Court’s first major case regarding disqualification of judges since the 1970s.  The Court, by a 5-4 majority, held that the Due Process Clause of the 14th Amendment requires a judge to recuse himself to avoid the probability of bias, and that within the framework of judicial election campaign contributions, a multi-factor test may objectively determine such a probability.

Background:  David & Goliath

About a decade ago, Hugh Caperton was successfully running Harman Development Corporation and Harman Mining Corporation (A.K.A. The Little Guy).[4]   Caperton grew up in the coal mining business, and his company represented a comparatively small operation in the Big Coal landscape of West Virginia.[5]   By contrast, A.T. Massey Coal Company, run by CEO Don Blankenship, is the state’s largest coal producer and the fourth largest in the nation (A.K.A. The Evil Empire).[6]   Our David and Goliath had several run-ins, but the ultimate fight began with Massey coveting the business of a Harman customer named LTV Steel Corporation.[7]  

In short, Massey purchased the conglomerate from which LTV traditionally purchased all its coal.[8]   That conglomerate had been the middle man between LTV and Harman.  Massey then forced LTV to either buy its coal from Massey, or to abandon its relationship with the conglomerate, thereby eliminating nearly all Harman’s business.[9] Massey caused this to occur too late in the year for Harman to find alternative buyers.[10]   These events forced Harman to halt operations and close its doors.[11]

Subsequently, Caperton and Harman sued Massey for tortuous interference, fraudulent misrepresentation, and fraudulent concealment.  The legal battle became epic, involving four years of pre-trial and two years post-trial litigation.[12]   In August 2002, a West Virginia jury rendered a verdict for the plaintiffs totaling over $50 million.[13]   When West Virginia Circuit Court Judge Hoke finally ended all the post-trial legal tap dancing, he stated that the jury had “properly” concluded that Massey’s and Blankenship’s conduct “was reprehensible.”[14]  The only option remaining to Massey was to appeal to the West Virginia Supreme Court of Appeals.  CEO Don Blankenship publicly vowed to do so, but first he wanted to go shopping for a new judge for the Court.[15]

Don Blankenship:  One of the 13 Scariest Americans

In 2006, Old Trout Magazine published a series of stories collectively titled “The Thirteen Scariest People in America.”[16]   The series named Don Blankenship the nation’s “scariest polluter.”[17]   In addition to highly destructive strip-mining techniques, his coal operations produce over 100 billion gallons of “a toxic black sludge,” which seeps into groundwater near residential areas and schools.[18]

As if destroying the environment were not bad enough, Blankenship also helped dismantle organized labor, sometimes violently.[19]   Massey is also one of the most delinquent coal companies in West Virginia in paying its premiums into the state Workers’ Compensation Fund.[20]   And in the political realm, Blankenship possesses a long history of divisive involvement.[21]  Then, when reporters questioned him about photos of him vacationing with WV Supreme Court Justice Elliot Maynard, with a Massey case pending before the Court, he threatened to shoot the reporters.[22]   This villainous public persona certainly makes it easier to believe that Blankenship specifically intended his campaign contributions to swing the appeal in his favor.

Justices for Sale!  Collect Them All!

West Virginia’s highest court, the Supreme Court of Appeals, is the state’s only appellate body.[23]   So after A.T. Massey lost disastrously at trial, only one chance at an appeal remained.  But Blankenship had been down this road before, and knew the five-justice Supreme Court had historically and repeatedly ruled against Massey.[24]   However, this also presented Blankenship with an opportunity:  of the three justices who tended to vote against Massey, one of them, Chief Justice Warren McGraw, needed reelection that November.[25]    

Justice McGraw’s Republican challenger, Brent Benjamin, a political newcomer, possessed no experience as either a litigator or judge.[26]   Because the McCain-Feingold Bipartisan Campaign Reform Act prevented Blankenship from directly contributing huge sums to Benjamin’s campaign, Blankenship established a 527 political action group named “And For the Sake of the Kids” (“AFSK”).[27]   It appears that, at least at first, Brent Benjamin had no idea who or what AFSK was.[28]

AFSK sponsored advertisements on billboards, radio, and television; it instigated incessant robocalls, to the extent that even the McGraw campaign headquarters received several per day; it even produced a mock documentary and purchased airtime to show it on a local TV station.  Always, these efforts featured vicious negative (and sometimes borderline slanderous) rhetoric about McGraw.[29]   It would be hard to argue that an unknown attorney with little trial and no judicial experience would have defeated Warren McGraw – a well-known, respected incumbent who had also previously served in the state Senate – without the multimillion dollar support of AFSK.  Perhaps sensing this, Benjamin attempted to address the notion in his victory speech:  “I can tell you I am not bought by anybody.”[30]

Obviously Blankenship is not the first to try changing the makeup of a court with money.  From 2000 to early 2004, the U.S. Chamber of Commerce spent over $100 million on 24 judicial elections in 8 states.[31]   According to a 2006 report by the Brennan Center for Justice, spending on judicial elections has increased to disturbing levels, and continues to trend upward.[32]   Whereas traditionally lawyers represented the largest portion of donors, the distribution appears to have shifted toward business donors, with the latter now accounting for nearly half of all money donated to judicial campaigns.[33]   All this money begs the question of influence, namely, do judges actually feel compelled to favor their campaign contributors?  Many other court cases have raised this issue, but the U.S. Supreme Court waited until Caperton to grant certiorari. 

What SCOTUS Had Previously Ruled

Constitutional due process guarantees a right to a fair hearing, but what renders a trial unfair?  In 1955, the Court stated:  “Fairness, of course, requires an absence of actual bias in the trial of cases, but our system of law has always endeavored to prevent even the probability of unfairness.”[34]  Actual bias of a judge obviously renders a proceeding unfair, but that case, In re Murchison, further established that a mere probability of bias invokes the Due Process Clause.

An earlier case, Tumey v. Ohio, set a relatively low standard for requiring recusal, but has rarely been followed, and when cited has often been distinguished.  Arising during prohibition, Tumey involved an Ohio law that financially rewarded public officials for successfully prosecuting prohibition cases.[35]   In striking down the law, the Court ruled that circumstances which would tempt the average judge, implicate due process.[36]  It is worth noting that in Tumey, the temptation in question was a financial interest of the judge in the outcome of a criminal trial.  But the notion that “any possible temptation to the average man” creates a constitutional violation remains a powerful one.

Decades later, the Court’s 1971 ruling in Mayberry v. Pennsylvania established that due process is implicated when circumstances are such that the judge “is not likely to maintain that calm detachment necessary to deliver fair adjudication.”[37]  Then, in 1975, the Court ruled that extreme facts may create a probability of actual bias too high to be constitutionally tolerable.[38] 

Taken together, these cases certainly establish a general doctrine that, under certain circumstances, the potential bias of a judge violates due process rights.  However, the specifics of each ruling make formulating a clear black-letter rule next to impossible.  And perhaps that is by design.  As the Court stated in Bracy v. Gramley, the basic requirements of due process establish a constitutional floor, not a uniform standard.[39]   More apt here, in FTC v. Cement Inst., the Court found that most matters relating to judicial disqualification do not rise to a constitutional level.[40]  So in some ways, it seems the Caperton ruling maintains a tradition of avoiding a clear standard in this area.

The Caperton Ruling

During oral arguments in Caperton, Justice Scalia claimed, “There are only two categories of cases, only two categories.  One – one is where the judge is almost the aggrieved party in conducting contempt proceedings against someone who is contemptuous of that very judge, and the other one is cases where the judges have a financial interest.”[41]   Justice White stated it more simply in Withrow v. Larkin:  “Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him.”[42]  The main problem that Caperton presented the Court was that its facts fit into neither category neatly.

Justice Kennedy, writing for the majority in Caperton, readily admitted that judicial elections constitute a framework not previously addressed by the Court.[43]   A pivotal campaign contributor like Don Blankenship creates no future pecuniary interest for the judge, but merely a debt of gratitude.  Scalia focused heavily on this point during oral arguments.  Therefore the crux of this issue is whether the temptation felt by a debt of gratitude rises to a constitutionally unacceptable level of potential bias.

Justice Benjamin’s defense to accusations of bias relied on the fact that no actual bias could be shown.[44]   But the Supreme Court decided such a finding is unnecessary.  In part, this is because such a finding would necessarily be based on the judge’s own introspection and subsequent determination about his own motives.[45]   Due process instead requires an objective test.  Using Withrow, Tumey, Mayberry, and others, the majority held that the mere probability of bias violates due process, and may be determined “based on objective and reasonable perceptions.”[46]   Specifically, within the framework of campaign contributions, “The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”[47]   The Court also noted other factors to consider, such as the timeframe of the contributions, in relation to the pendency of the case.[48]  

In summary, this ruling fundamentally establishes a new category of judicial interest as a potential source of bias:  campaign contributions.  Justice Kennedy’s opinion stands for the idea that by evaluating this list of factors, one may objectively determine the existence of a probability of bias arising from a judicial election.

The kernel of Chief Justice Roberts’s dissenting opinion argues that the two previously exclusive categories giving rise to constitutionally mandated recusal are inherently objective.[49]   Either a judge has a pecuniary interest in the outcome of the case or he doesn’t; either he was the target of personal abuse by one of the parties or he wasn’t.  Now, Roberts seems to argue, the issue of recusal must necessarily be taken to another court, which must evaluate a list of factors in order to determine whether a mere probability of bias existed.  This, Roberts argues, “provides no guidance to judges and litigants about when recusal will be constitutionally required.”[50]   Secondarily, the dissent argues that beyond those two previously recognized categories, questions of recusal were properly handled by legislation or rules of professional responsibility, not by constitutional mandate.

Perhaps the best way to cut the Gordian knot is to simply eliminate judicial elections, or at least judicial campaign contributions.  But as things stand, Chief Justice Roberts may be right in his floodgates argument, namely that savvy litigants will be able to stall proceedings by bringing allegations of a probability of bias.  It’s an easy accusation to make, and a determination now requires constitutional analysis.

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[1]  Technically disqualification differs from recusal – the former is mandatory, the latter voluntary – but the terms are often used interchangeably.

[2]  Caperton v. A.T. Massey Coal Co. (Caperton III), No. 08-22, slip op. (U.S., 2009), available at http://www.law.cornell.edu/supct/pdf/08-22P.ZO

[3]  Paul J. Nyden, Novel Linked to State Election, Charleston Gazette, Jan. 30, 2008, http://www.wvgazette.com/News/200801290715

[4]  Caperton v. Massey (Caperton II), No. 98-C-192, 2005 WL 5679073, slip op. at 6 (25th Cir. W.V., March 15, 2005) (order denying Defendants’ motion for judgment as a matter of law).  The Harman mines sold a particularly high grade of coal, and so was able to maintain its niche.

[5]  See Robert Barnes, Case May Define When a Judge Must Recuse Self, Wash. Post, Mar. 2, 2009, at A1, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/01/AR2009030102265.html.

[6]  Ian Urbina, Wealthy Coal Executive Hopes to Turn Democratic West Virginia Republican, N.Y. Times, Oct. 22, 2006, available at http://www.nytimes.com/2006/10/22/us/22blankenship.html (calling Massey’s CEO “the chief executive of the state’s largest coal producer”); Mining Case Shows Sooty Side of Big-Money Judicial Elections, Op-Ed, USA Today, Apr. 2, 2009, at 10A, available at http://www.usatoday.com/printedition/news/20090303/editorial03_st.art.htm.

[7]  Caperton II, slip op. at 6; see generally Michael Shnayerson, Coal River, 85-90 (2008) (describing the history of the relationship between Hugh Caperton and Don Blankenship and their respective companies). 

[8]  Caperton II, slip op. at 6.

[9]  Id. at 6-9.

[10]  Id. at 9.

[11]  Id.

[12]  Id. at 1.

[13]  Caperton v. Massey (Caperton I), No. 98-C-192, 2002 WL 33946557 (25th Cir. W.V., Aug. 15, 2002) (judgment order).  The jury awarded Harman more than $34 million, and Caperton personally over $15 million.

[14]  Id. at 27, 29.

[15]  Barnes, supra note 4.

[16]  The Thirteen Scariest People in America, Old Trout Mag., Oct. 30, 2006, available at http://www.alternet.org/story/43586/

[17]  David Roberts, Scariest Polluter:  Don Blankenship / CEO of Massey Energy Co., in The Thirteen Scariest People in America, Old Trout Mag., Oct. 30, 2006, available at http://www.alternet.org/story/43586/.  The article details the way Massey blasts ridge-tops off mountains to strip-mine for coal, destroying the land to the extent that it precludes other industries moving in to redevelop or repurpose the area.  Id.; see also Urbina, supra note 4.

[18]  Roberts, supra note 17.

[19]  Thirty years ago 95% of coal miners belonged to unions; according to some, thanks to Blankenship’s actions, less than 25% belong to unions today.  Specifically, merely 3% of Massey’s workers remain unionized.  See Urbina, supra note 5; Roberts, supra note 17; Bernard Condon, Not King Coal, Forbes, May 26, 2003 (calling Blankenship “the man who broke the back of the coal union”), available at http://www.forbes.com/forbes/2003/0526/080_print.html.  In 1985, a showdown between Blankenship and a mineworkers’ union resulted in a 15 month strike, one shooting death, 91 hospitalizations, and three destroyed armored cars.

[20]  Shnayerson, supra note 6, at 85.

[21]  Urbina, supra note 4; Adam Liptak, Case May Alter Judge Elections Across Country, N.Y. Times, Feb. 14, 2009, available at http://www.nytimes.com/2009/02/15/washington/15scotus.html.  Blankenship has been linked to another WV Supreme Court Justice, and has spent $6 million recently in an effort to gain more Republican seats in the state legislature.

[22]  See Liptak, supra note 22; Brian Ross & Maddy Sauer, Coal Boss:  If You Take Photos, “You’re Liable to Get Shot”, ABC News, Apr. 3, 2008, available at http://abcnews.go.com/Blotter/story?id=4582452&page=1

[23]  The Supreme Court of Appeals, http://www.state.wv.us/wvsca/supreme.htm.  The five justices of the Court sit for 12-year terms, which they must win by general election.  Only 10 other states, and the District of Columbia, similarly process all appeals through a single court.  See also National Conference of Appellate Court Clerks, http://www.appellatecourtclerks.org/links.html

[24]  Shnayerson, supra note 6, at 78 (stating that he was “[t]ired, above all, of the West Virginia Supreme Court of Appeals, to which those cases inevitably ascended, and where, to Don’s profound annoyance, three of the five justices seemed to go out of their way to find against Massey Energy”).

[25]  Id.

[26]  Id. at 79.

[27]  Id. at 83.  Someone asked Blankenship if the name of his 527 indicated an intention to help children – a reasonable question considering 100% of the group’s activities thus far had been conducting a smear campaign against a Supreme Court justice.  He replied that he intended to start a foundation after the election, to provide clothing and necessities to poor children.  However, Blankenship never followed through on that promise.  Id. at 86.

[28]  See id. at 83-84.

[29]  Shnayerson, supra note 6, at 83-85.  The worst of them accused McGraw of letting a child rapist go free.  Id. at 79 (quoting a commercial as saying, “Letting a child rapist go free to work in schools – that’s radical Supreme Court Justice Warren McGraw.”).  It is worth noting that the rapist in question never actually went to work in any school.  Id. at 81.

[30]  Shnayerson, supra note 6, at 95.

[31]  Id. at 79.  The U.S. Chamber of Commerce is a federation of businesses, and state and local chambers of commerce.  Coincidentally, Don Blankenship also serves on its Board of Directors.  It has contributed to judicial campaigns largely in order to unseat Democratic, pro-union judges.

[32]  James Sample et al., The New Politics of Judicial Elections 2006 (2007), available at http://www.brennancenter.org/page/-/d/download_file_48787.pdf.  The report goes on to note that in 2006 all 11 states which require election of Supreme Court justices held such elections, and that television advertisements in these campaigns averaged $1.6 million per state.  Business donors contributed 90% of that money, and overall donated $15.3 million, more than double the amount donated by lawyers.  See also, Bert Brandenburg & Leo A. Schotland, Justice in Peril:  The Endangered Balance Between Impartial Courts and Judicial Election Campaigns, 21 Geo. J. Legal Ethics 1229, 1230 n.5 (2008) (showing that judicial campaign spending has risen more sharply in recent years than other campaign spending).

[33]  Id. at 19 fig. 12.

[34]  In re Murchison, 349 U.S. 133, 136 (1955).

[35]  Tumey v. Ohio, 273 U.S. 510 (1927).

[36]  Id. at 532 (“Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.”).

[37]  Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971).

[38]  Withrow v. Larkin, 421 US 35, 47 (1975).

[39]  Bracy v. Gramley, 520 U.S. 899 (1997).

[40]  Fed. Trade Com’n v. Cement Inst., 334 U.S. 839 (1948).

[41]  Transcript of Oral Argument at 11, Caperton v. Massey, 2009 WL 527723 (No. 08-22).

[42]  Withrow, 421 U.S. at 47.  It is worth noting that White did not suggest these two categories must create actual bias, but rather that they might create “the probability of actual bias” that “is too high to be constitutionally tolerable.”  Id.

[43]  Caperton III, slip op. at 11.

[44]  See Caperton III, slip op. at 11-12.

[45]  Id. at 13.

[46]  Id. at 1, 14.

[47]  Id. at 14.

[48]  Id. at 15.

[49]  Caperton III, slip op. (Roberts, J., dissenting) available at http://www.law.cornell.edu/supct/pdf/08-22P.ZD.

[50]  Id.